Citation Nr: 1134820 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 07-34 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Ogilvie, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1975 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the claim sought. In January 2010, the Board remanded the Veteran's claim to the RO for additional development. The claim is again before the Board for appellate review. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service treatment records reflect that, sometime prior to his separation examination in March 1981, the Veteran was involved in an assault, where his back was struck with a lug wrench at the L1-L2. On separation examination in March 1981, the Veteran reported a contusion in the middle to lower back at L1-L2. The Veteran had full range of motion, and the problem was found to not be disabling. Although not documented in service treatment records, the Veteran also alleges that in 1978 or 1979, he injured his lower back while pulling a boat from a trailer bed and falling in a hole. The Veteran admits that he did not seek treatment for his back injury. The Board points out, however, that a layperson is competent to report on matters observed or within his or her personal knowledge, including an in-service injury. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In January 2010, the Board remanded the Veteran's claim for further development, to include an opportunity for a VA examination, where the examiner was to opine as to whether it was at least as likely as not that the Veteran's back disability had its onset in or was otherwise related to service, to include the injury resulting in a contusion on the lower back as noted in the report of the March 1981 separation examination. The Veteran was afforded a VA examination in May 2010, where the examiner only opined that the Veteran's lower back disability was not caused by or related to his injury resulting in a contusion of the lower back as noted on the report of the March 1981 separation examination. The examiner, however, did not opine as to the Veteran's other in-service injury. The United States Court of Appeals for Veterans Claims (Court) has held that a VA examination is inadequate where it ignores the claimant's statement of in-service incurrence. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Further, the examiner noted that he found the Veteran's assault injury to be acute in nature, but did not discuss the significance of the Veteran's claims of continuity of symptomatology since service. As such, the Board finds that the examination is inadequate, and a new opinion is required. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all updated records pertaining to treatment for a low back disability from the VA Medical Center in Huntington, West Virginia. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. After all records/responses received from each contacted entity are associated with the claims file, the RO should forward the Veteran's entire claims file (to include a complete copy of this REMAND) to the VA physician who conducted the May 2010 VA examination for a comprehensive review of the record and medical opinion. The physician should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability), that the Veteran's current low back disability had its onset in service or is otherwise related to service, including but not limited to, the two described injuries, specifically, a) the fall that occurred in 1978 or 1979; and b) the assault with a lug wrench that occurred in 1981. For purposes of providing an opinion, the physician should assume that both injuries occurred as described by the Veteran. The physician should also discuss the Veteran's complaints of continuous back pain since service. The examiner should set forth a complete rationale for the conclusions reached, in a report. If the May 2010 examiner is unavailable, or an examination of the appellant is deemed necessary, the RO should arrange for the Veteran to undergo orthopedic examination, by a physician, to obtain the above-noted findings and opinions. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a report. 3. If the Veteran fails to report to any scheduled examination, the RO must obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to the Veteran by the VA medical facility. 4. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal in light of all pertinent evidence. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate Supplemental Statement of the Case, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).